DAKSHAYINI AMMA THANKAMMA Vs. KESAVA PILLAI RAMAKRISHNA PILLAI

JUDGEMENT

(1.) THE plaintiff-respondent brought a suit in the Court of the District Munsiff of Nedumangad on 15. 3. 1119 for redemption of an alleged mortgage. It was stated in the plaint that the Karnavan of Kundarathala Tarwad had mortgaged the property described in the plaint schedule to Ayyappan Pillai kumara Pillai the Karnavan of the defendant's tarwad, and that the defendants were in possession under the mortgage. THE mortgage money was stated to be Fs. 300. THE persons who obtained the equity of redemption in the partition of kundarathala tarwad sold the same to the plaintiff on 27. 12. 1117, directing him to redeem the mortgage. THE cause of action for the suit was stated to have arisen on 21. 4. 1075, 4. 1. 1099 the date of the partition in Kundarathala tarwad and 27. 12. 1117 the date of purchase by the plaintiff. THE significance of the date 21. 4. 1075 was not divulged in the plaint. THE 3rd defendant who alone contested the suit denied the alleged mortgage and contended that the property belonged to the defendant's tarwad from ancient times, that she purchased it from the parties who got it in the partition deeds of the years 1090 and 1104 in the defendant's tarwad, that the suit was barred by limitation and that the plaintiff's vendors or their tarwad had no title to the equity of redemption. THE plaintiff filed a replication stating that the defendant's tarwad had all along admitted that they had only mortgage right in the property. THE property according to the plaintiff belonged Kuruchimatom, who gave it on kanapattom to kundarathala tarwad. THE Jenmi filed a suit as O. S. No. 742 of 1075 for recovery of arrears of Michavarom due under the Kanapattom transaction making the Karnavan and the senior Anandaravan of Kundarathala tarwad, defendants Nos. 1 and 2 Ayyappan Kumaran the Karnavan of the defendant's tarwad defendant No. 3. That suit was decreed, charging the amount on the property and thereafter when some members of the defendant's tarwad filed a suit for removal of Ayyappan Kumaran from management, the fact that he was not discharging debts of the tarwad including the one covered by the decree in O. S. No. 742 of 1075 was relied on by them as a ground for his removal. By the institution of the two suits as well as by the payment of tax by the defendants in the name of Kundarathala tarwad, the defendant's tarwad was stated to have admitted that they were in possession only as mortgagees. THE plaintiff admitted that he was not aware of the date or the year in which the mortgage was executed. THE trial court framed one issue to cover all the points in controversy and it was in these terms. "is plaintiff competent to redeem". It was held that the defendants were in possession under a mortgage from Kundarathala tarwad and that this finding was sufficient to give the plaintiff a decree for redemption, as the plaintiff had not tied himself down to any specific mortgage made at any particular time. In other words, the finding is that when the plaintiff in a suit for redemption does not allege a specific mortgage and shows that the defendants' possession must be as mortgagees he is entitled to succeed. THE decision of the High Court of Travancore in Subramonia Iyer v. Ummini, (9 TLJ 228) was relied on. THE 3rd defendant appealed from the decree for redemption to the District Court and the appeal was dismissed on substantially the same ground which found favour with the trial court. It was further held that the defendant had not pleaded limitation but only adverse possession and that no question of limitation arose for decision. As the decree of the trial court was confirmed in appeal, the 3rd defendant has brought this second appeal.

(2.) IT is obvious that the learned judge did not care to look into the pleadings; had he done so, he could not have missed the fact that the plea of limitation was raised in paragraphs Nos. 4 and 7 of the 3rd defendant's written statement and that there was no contention based on adverse possession. The learned judge observed: "no doubt the date of the mortgage is not known. But when the plaintiff has succeeded in showing that the defendant is holding the property under a mortgage and only in that capacity, a case for redemption has been made out by him and it is for the defendant to make out that he is not holding under that particular mortgage".

(3.) THIS observation which was based on the decisions in ganeshi Lal v. Basanti Lal (20 IC 29), Ram Lal v. Shri Mukurji Koshori Mahraj (22 IC 574) and Bala v. Shiva (ILR 27 Bom. 271) was followed by the Travancore high Court in Aiyappan v. Subramonian (4 TLT 48) Raman Raman v. Varki Skaria (4 tlt 780) and Punnan Masilamony v. Easakkimadan Velayudhan (5 TLT 875 ). Reference will be made to these decisions later.